The Seven Deadly Sins of Title II Reclassification (NOI Remix)
The Progress & Freedom Foundation
Larry Downes
August 2010

Downes has recently penned a paper for PFF in which he briefly explains how we have gotten to the point we are currently at in the Net Neutrality debate.  He follows this with the options the Federal Communications Commission (FCC) had after the D.C. Circuit case against Comcast:

1. “Refocus its ancillary jurisdiction argument, perhaps attaching it to some other provision of the Communications Act that hadn’t been rejected by the D.C. Circuit.”
2. “Appeal the decision, either to an en banc sitting of the circuit court or to the U.S. Supreme Court or both. (Both options 1 and 2 would be discretionary appeals to the respective courts.”
3. “Request legislation by Congress that would, one way or the other, undo Comcast.”
4. “‘The nuclear option’: Reverse a decade of FCC decisions interpreting the 1996 amendments to the Communications Act and classify broadband Internet access as a ‘telecommunications service’ subject to the full regulatory powers of the Commission under Title II of the Act. Title II would give the FCC all the jurisdiction it needed and then
   some to continue with the NPRM, but at the cost of a radical extension of the agency’s power over Internet access, power that the FCC itself had successfully argued to the U.S. Supreme Court and elsewhere that Congress had never intended to give it.”

As many know and Downes points out, the FCC has made a strong step toward the “Third Way” and what many have termed “Title II Light”.  And because of this, Downes has developed his own Seven Deadly Sins of Title II Reclassification.

• “Pride: As the FCC attempts to define what services would be subjected to reclassification, the agency runs the risk of both under- and over-inclusion, which could harm consumers, network operators, and content and applications providers.
• Lust: The agency is reaching out for additional powers beyond its reclassification proposals — including an effort to wrest privacy enforcement powers from the Federal Trade Commission and putting itself in charge of cybersecurity for homeland security.
• Anger: The “Third Way” may dramatically expand the scope of federal wiretapping laws, requiring law enforcement “back doors” for a wide range of products and services.
• Gluttony: Reclassifying broadband opens the door to state and local government regulation, which would overwhelm Internet access with a deluge of conflicting, and innovation-killing, laws, rules and new consumer taxes.
• Sloth: As the FCC looks for a legal basis to defend reclassification, basic activities — such as caching, searching, and browsing — may for the first time be included in the category of services subject to “common carrier” regulation.
• Vanity: Though wireless networks face greater challenges from the broadband Internet than wireline networks, the FCC seems poised to impose more, not less, regulation on wireless broadband.
• Greed: Reclassification of broadband services could vastly expand the contribution base for the Universal Service Fund, adding new consumer fees while supersizing this important, but exceedingly wasteful, program.”

You can find the full paper here.